Millar v Galashiels Gas Company
| Jurisdiction | Scotland |
| Judgment Date | 06 February 1948 |
| Docket Number | No. 22. |
| Date | 06 February 1948 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Lord Blades.
NegligenceMaster and ServantBreach of statutory dutyFactoryMaintenance of hoists and liftsInexplicable failure of hoist on single occasionFactories Act, 1937 (1 Edw. VIII and 1 Geo. VI, cap. 67), secs. 22 (1) and 152 (1).
The Factories Act, 1937, enacts:Sec. 22. "(1) Every hoist or lift shall be of good mechanical construction, sound material and adequate strength, and be properly maintained." "Maintained" is defined in sec. 152 (1) of the Act as meaning "maintained in an efficient state, in efficient working order, and in good repair."
A workman was killed through the failure of the brake mechanism of a hoist in his employers' works. The employers had taken every practical step to ensure that the mechanism worked properly and that the hoist was safe to use. The brake had worked well both before and after the accident, and the failure, of which no explanation was forthcoming, could not have been anticipated.
Held (diss. Lord Mackay) that the obligation created by the Act was of an absolute and continuing nature, and that the fact of the failure of the brake was sufficient to establish a breach of the employers' statutory duty.
Mrs Mary O'Donnell or Millar brought an action against the Galashiels Gas Company, Limited, for damages in respect of the death of her husband, George Dunse Millar, which occurred as the result of injuries received while in the employment of the defenders.
A proof was led before the Lord Ordinary (Blades) and the following statement of the facts is taken from his Lordship's opinion:"The pursuer, who is the widow of the deceased George Dunse Millar, a stoker employed by the defenders in their gas works at Galashiels, claims damages for the death of her husband. There is little dispute about the facts of the accident which resulted in the death of the deceased. At or about 9 p.m. on 1st October 1945 he had taken a bogie laden with coke in an electric lift from the ground floor of the gas works to the first floor in order to discharge the coke into a screening plant situated at the end of a gantry leading from the liftway. He had brought the lift to rest at the first floor, drawn the bogie from the lift platform along the gantry and discharged the coke into the screening plant. He had then pushed the empty bogie back along the gantry to the lift. In the meantime, owing to the failure of the brake to hold it stationary at the first floor level, the lift had ascended to the top of the shaft. Instead of the bogie coming to rest in its proper position on the lift platform, it fell down the lift shaft into a sump at the bottom of the shaft, dragging the deceased with it. As the result of falling down the lift shaft the deceased was so severely injured that he died on the following day. The lift was electrically driven. It was raised and lowered by means of wire ropes attached to the lift and wound round a drum driven by an electric motor. The electric motor and lift mechanism were situated in a room at the top of the lift shaft. To control the lift and hold it fast at any of the floor levels at which it had to be stopped, there was a brake fitted to the drum. The brake consisted of two ferodo lined shoes magnetically operated through a solenoid which, when magnetised electrically, caused the brake shoes to open and allowed the drum to revolve. On current being cut off the solenoid was demagnetised and powerful springs brought the brake shoes into firm contact with the drum and held it fast. The action of the brake on the drum controlled and stopped the lift. The electric current was controlled by an operating lever in the lift through a circuit of which the liftway gates were a stage. Accordingly, when the lift was travelling in the shaft, it was brought to rest at any desired station by the return of the operating lever to the neutral position in the control box in the lift. This cut off the current from the solenoid and brought the brake into operation; while the opening of the liftway gates caused a break in the electrical circuit rendering the whole mechanism inoperable and immobile. So it remained until the liftway gates were closed again and current was released by putting the operating lever into the on position. Thus it was that, when the lift was brought to rest at the first floor level on the occasion in question, it should have remained at rest there until the deceased had pushed the empty bogie back into position on the lift platform, closed the liftway gates, thus restoring the electrical circuit, and, having closed the lift gates, switched on the current by means of the operating lever in the lift. When the lift was examined on the night of the accident, it was found that the liftway gates on the first floor were open. The lift was at the top of the shaft. It was at once seen on examination of the lift mechanism in the motor room that the brake shoes were not gripping the drum. Nothing was touched that night, as the defenders' manager had summoned their maintenance engineers, Messrs. Etchells, Congdon & Muir, Limited, lift engineers, to come to the gas works next day and carry out a thorough examination of the plant. This they did. Their fitters found that the brake was in the off position and fully open, and that the solenoid was in the energised position. As already pointed out, the liftway gates on the first floor were open thereby causing a break in the electrical circuit; the electric current was off and, accordingly, the plunger of the solenoid should have been in the demagnetised position with the brake shoes firmly gripping the drum. The mechanism is so designed that, whenever the solenoid is demagnetised, the brake shoes automatically grip the drum and hold it fast. In the course of a closer examination of the solenoid plunger, brake links and springs, Melville, one of the fitters sent down to Galashiels by the maintenance engineers, just touched the solenoid plunger when it at once dropped into position and the brake shoes immediately closed on the drum. It is agreed that at the time of the accident something must have interfered with the mechanism and prevented it from working in the normal way; but what it was has not been discovered. After the brake had sprung into position the fitters tried several times to make the brake mechanism stick but could not do so. The solenoid and brake were dismantled and carefully examined to see if anything could be discovered to account for the brake failing to act. Nothing was found. They were then reassembled, the current was switched on and the lift operated, and the brake was found to work perfectly. The lift was installed in 1920. The defenders' present manager has been in office for the past nine years, and throughout that time the brake has not been known to fail on any occasion prior to the occasion on 1st October 1945. It has continued to work satisfactorily since the accident and, apart from being dismantled and reassembled on the morning following the accident, it has required nothing done to it in the way of renewal or repair. But that the brake failed to function when the deceased met with his accident is not open to doubt."
The pursuer pleaded:"(1) The pursuer, having suffered loss, injury and damage through the defenders' breach of statutory duty, is entitled to reparation as concluded for. (2) The pursuer, having suffered loss, injury and damage through the defenders' breach of common law duty, is entitled to reparation as concluded for."
On 13th June 1947, the Lord Ordinary found that the defenders were in breach of their statutory duty under section 22 (1) of the Factories Act, 1937,1 but were not in breach of any common law duty, and awarded a sum of damages to the pursuer.
At advising on 6th February 1948,
LORD JUSTICE-CLERK (Thomson).The facts in this case have been fully recited by the Lord Ordinary and I need not repeat them. The issue between the parties is a legal one turning on the proper construction of section 22 (1) of the Factories Act, 1937,9which provides "Every hoist or liftshall be properly maintained." Section 152 of the Act defines "maintained" as meaning "maintained in an efficient state, in efficient working order and in good repair."
It is clear that the obligation is imperative, but the issue between the parties is the extent of the obligation. On the one hand, the pursuer says that the behaviour of the lift on the occasion in question demonstrates that it was not properly maintained in an efficient state, in efficient working order and in good repair. On the other hand, the defenders say that they did all that was reasonably possible to carry out the obligation and that, as no cause has been discovered for the failure of efficiency, they cannot be convicted of negligence in not providing against a contingency which could not reasonably have been anticipated.
Lord Atkin, in approaching a not dissimilar problem, put the issue thus, "Is the duty so imposed an absolute one?: or is it to be construed as limited to a duty to take reasonable care to maintain? "10 We heard considerable argument on what is meant by saying that a statutory obligation is absolute. Repeated decisions of the House of Lords leave this matter in no doubt. In a common law obligation the standard by which the defender's performance falls to be measured is fixed by a jury, whereas in a statutory obligation the standard is fixed by the statute itself. Indeed, the very object of the legislation is to put the matter beyond controversy so that the non-performance of the obligation is itself negligence, and a pursuer is under no necessity of proving lack of due care on the part of the person on whom the statutory duty is placed. If Parliament intends that an obligation is to be measured by some qualified standard it says so. Thus in section 26 it is provided that "There shall, so far as is reasonably practicable, be provided and maintained safe means of...
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